Scalia, Germany, and the “Spirit of the Age”

July 21st, 2013

The Huffington Post, citing to an Aspen Times report of Justice Scalia’s comments, writes that “Scalia drew upon the Holocaust as an example of how judicial activism can lead to problems.” Reportedly, Scalia said:

Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.

I don’t have a transcript of Scalia’s remarks–and neither does HuffPo, but this is an often-discussed point. Cass Sunstein made a similar point in the Chicago Law Review.

In the Nazi period, German judges rejected formalism. They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the Nazi regime. They thought that courts could carry out their task “only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized.” […] After the war, the Allied forces faced a range of choices about how to reform the German legal system. One of their first steps was to insist on a formalistic, “plain meaning” approach to law.

Cass R. Sunstein, “Must Formalism Be Defended Empirically?,” 66 U Chi. L. Rev. 636, 662-66 (1999) (quoting 72 Entscheidungen des Reichsgerichts in Strafsachen 9 (1939), translated in Ingo Müller, Hitler’s Justice: The Courts of the Third Reich at 101 (1991)).



Spirit of the Age is a loose translation of the common phrase, zeitgeist